1724430 (Migration) - [2019] AATA 6411

1724430 (Migration) [2019] AATA 6411 (18 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724430
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Penelope Hunter
DATE:18 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:
·PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.

Statement made on 18 December 2019 at 12:35pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – health criteria – medical assessment – letters of support provided – possibility of discrimination and stigma – granting of visa unlikely to result in undue cost or prejudice – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.224, 186.234, Schedule 4 Public Interest Criterion (PIC) 4007, r 2.25A
CASES
Bui v MIMA (1999)85 FCR 134

Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 21 September 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 4 December 2015. The delegate refused to grant the visa as the first named applicant (now referred to as the applicant) did not satisfy cl.186.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in public interest criterion (‘PIC’) 4007 of Schedule 4 to the Regulations was not met.
The applicant and [Ms A] appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
[Mr B] is the primary visa applicant for the grant of a Subclass 186 Employer Nomination Scheme visa. [Ms A] is the wife of the applicant, and [Master C] and [Master D] are the children of the applicant. The applicant’s wife and children have been included in the visa application as members of his family unit.
The applicant and [Ms A] are citizens of Nepal, and arrived independently in Australia in 2007, on student visas. The applicant completed a Diploma and Certificate IV in Hospitality, and [Ms A] a Certificate III in Health Support Services in 2013. The applicant has been working for his [employer], , since [January] 2011 and he was sponsored in the position of [info deleted]. The applicant and [Ms A] were married in 2008,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 6411
Decision Date: 18 December 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa by Mr B, with his wife Ms A and their children Master C and Master D included as members of his family unit. The central dispute revolved around whether Ms A met the health criteria stipulated by Paragraph 4007 of the Migration Regulations 1994, which, if not met by a family member, could prevent the primary applicant from satisfying the visa requirements. The decision was made by Penelope Hunter, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if Ms A satisfied the health requirement under PIC 4007, specifically concerning the likelihood of requiring health care or community services that would result in significant cost to the Australian community or prejudice the access of Australian citizens or permanent residents to such services. This assessment was based on two Medical Officer of the Commonwealth (MOC) reports, both of which indicated that Ms A had a particular medical condition that would likely necessitate ongoing medical review and treatment, leading to substantial costs.

The Tribunal reasoned that while the MOC reports indicated Ms A did not meet the health criteria, the Minister had the discretion to waive these requirements under subclause 4007(2) if granting the visa would be unlikely to result in undue cost or prejudice to Australian citizens or permanent residents. The Tribunal noted that submissions had been made by the visa applicants, including further medical information, and that the possibility of discrimination and stigma associated with Ms A's condition had been raised. Given these considerations, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the first named applicant meets PIC 4007(2)(b) for the purposes of clause 186.224(2) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE [Mr B] is the primary visa applicant for the grant of a Subclass 186 Employer Nomination Scheme visa. [Ms A] is the wife of the applicant, and [Master C] and [Master D] are the children of the applicant. The applicant’s wife and children have been included in the visa application as members of his family unit. The applicant and [Ms A] are citizens of Nepal, and arrived independently in Australia in 2007, on student visas. The applicant completed a Diploma and Certificate IV in Hospitality, and [Ms A] a Certificate III in Health Support Services in 2013. The applicant has been working for his [employer], , since [January] 2011 and he was sponsored in the position of [info deleted]. The applicant and [Ms A] were married in 2008, and [Master C] was born in Australia in [date]. [Master D] was also born in Australia in [date]. The issue in this review is whether the applicant meets PIC 4007 as required by the criteria for the grant of the visa. PIC 4007, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. This last requirement may be waived in certain circumstances. As part of the assessment for the grant of the visa, all applicants were required to be assessed by the Medical Officer of the Commonwealth (MOC). The assessment by the MOC of [Ms A], dated 15 November 2016, found that she had the condition of [Medical Condition 1]. It was assessed that a hypothetical person with the condition in the form and severity of [Ms A] would be likely to require continued access to health care or community services including medical services and pharmaceuticals. It was assessed that the provision of these services was likely to result in a significant cost to the Australian community, and in the opinion of the MOC, the likely costs were assessed as [amount]. Based on this assessment, the MOC found that [Ms A], and consequently the applicant, did not meet the health requirement. Submissions were made by the visa applicants to the Department in response to this opinion; these submissions included the provision of further medical information concerning [Ms A]. A further opinion was obtained from an MOC dated 4 May 2017. In this opinion, the MOC assessed that [Ms A] was a person with [Medical Condition 1]. It was assessed that a hypothetical person with the condition in the form and severity of [Ms A] would likely require ongoing medical review and [Medical Therapy 1]. It was assessed that the provision of these health care and/or community services were likely to result in a significant cost to the Australian community. Further, in the opinion of the MOC, the likely costs were assessed as [amount]. Based on this assessment, the MOC found that [Ms A] again did not meet the health requirement.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for the Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:·PIC 4007(2)(b) for the purposes of cl.186.224(2) of Schedule 2 to the Regulations.Penelope HunterMemberATTACHMENTMigration Regulations 1994Schedule 44007(1) The applicant:(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:(i)must undertake any medical assessment specified in the instrument; and(ii)must be assessed by the person specified in the instrument;unless a Medical Officer of the Commonwealth decides otherwise; and(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and(a) is free from tuberculosis; and(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and(c) subject to subclause (2) — is free from a disease or condition in relation to which:(i)a person who has it would be likely to:(A)require health care or community services; or(B)meet the medical criteria for the provision of a community service;during the period described in subclause (1A); and(ii)the provision of the health care or community services would be likely to:(A)result in a significant cost to the Australian community in the areas of health care and community services; or(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;regardless of whether the health care or community services will actually be used in connection with the applicant; and(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.(1A)For subparagraph (1)(c)(i), the period is:(a) for an application for a permanent visa — the period commencing when the application is made; or(b) for an application for a temporary visa:(i)the period for which the Minister intends to grant the visa; or(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.(1B)If:(a) the applicant applies for a temporary visa; and(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.(2)The Minister may waive the requirements of paragraph (1)(c) if.(a) the applicant satisfies all other criteria for the grant of the visa applied for; and(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:(i)undue cost to the Australian community; or(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

Ratio Decidendi

Legal Principle Established

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